AMI 1510 Duty of Attorney—Negligence

The bracketed paragraph must be given unless the court determines that expert testimony is not necessary because the case falls within the common knowledge exception. The bracketed paragraph of this instruction should be used only when expert testimony is required to establish the requisite degree of skill and diligence. If it is used, do not use AMI 104. The first parenthetical phrase regarding use or application of the standard of care should be used when the trial judge determines that only expert testimony or other admissible evidence of professional standards should be considered by the jury on the issue of the use or application of the standard of care.

When the bracketed paragraph is given, AMI 107 should also be submitted.

Additional instructions may be required in an attorney negligence case. For example, if there is an issue whether there was an attorney-client relationship, that issue would need to be presented by an appropriate modification of AMI 203 as well as a definition of what is required to establish its existence.

In an action against an attorney for professional negligence, testimony of other attorneys in the same area as to standards of conduct has been held proper and permissible. An attorney is negligent if he or she fails to exercise reasonable diligence and skill on behalf of a client. A plaintiff must prove that the attorney’s conduct fell below the generally accepted standard of practice and that this conduct proximately caused damages. To show damages and proximate cause, the plaintiff must show that, but for the alleged negligence of the attorney, the result in the underlying action would have been different. Barnes v. Everett, 351 Ark. 479, 486, 95 S.W.3d 740, 744 (2003) (lawyer advised client to settle with active tortfeasor, causing dismissal with prejudice of claim against passive tortfeasor); Pugh v. Griggs, 327 Ark. 577, 585–86, 940 S.W.2d 445, 449 (1997) (lawyer did not pursue suit and client suffered a nonsuit, which resulted in an untimely refiling under the savings statute); Callahan v. Clark, 321 Ark. 376, 387–88, 901 S.W.2d 842, 848 (1995) (lawyer negligently advised client to sign property settlement agreement).

In Barnes, the Arkansas Supreme Court said that this instruction (formerly AMI 1512) properly told the jury that an attorney’s conduct must be measured against the generally accepted standard of practice and that expert testimony is required as proof on what the standard of practice is unless the trial court determines that such testimony is not necessary because the case falls within the common knowledge exception. 351 Ark. at 493–94, 95 S.W.3d at 749.

An attorney is not a guarantor that his or her judgment is infallible and is not liable to a client for errors of judgment made in good faith. Attorneys are not liable for a mistaken opinion on a point of law that has not been settled by a court of highest jurisdiction and on which reasonable attorneys may differ. Schmidt v. Pearson, Evans & Chadwick, 326 Ark. 499, 506–07, 931 S.W.2d 774, 779–80 (1996) (basis for client’s claim against lawyer was a matter of first impression).

An attorney may be sued under the theory of breach of an implied contract. Lemon v. Laws, 313 Ark. 11, 15, 852 S.W.2d 127, 130 (1993); Pettus v. McDonald, 343 Ark. 507, 512, 36 S.W.3d 745, 748 (2001). As a result joinder of negligence and contract claims in a legal malpractice case has been allowed. Lemon, 313 Ark. at 15, 825 S.W.2d at 130. For statute of limitation purposes, most actions will be characterized as sounding in tort. Sturgis v. Skokos, 335 Ark. 41, 49–50, 977 S.W.2d 217, 221 (1998).

A violation of the Model Rules of Professional Conduct is not evidence of negligence and does not create any presumption that a legal duty has been breached. Orsini v. Larry Moyer Trucking, Inc., 310 Ark. 179, 184, 833 S.W.2d 366, 369. The Arkansas Rules of Professional Conduct provide that, “[a] [v]iolation of a rule should not itself give rise to a cause of action against a lawyer nor should it create any presumption in such a case that a legal duty has been breached. . . . They are not designed to be a basis for civil liability.” Ark. R. of Prof'l Conduct Scope ¶ 20.

Proximate cause in attorney malpractice cases will, in some instances, present a question of law. In Sturgis, the court held the proximate causation question of whether an appeal, which the defendant failed to perfect, would have been successful is a question of law. 335 Ark. at 51, 977 S.W.2d at 221–22.

Under Arkansas law, the reach of the comparative fault doctrine in legal malpractice cases is not limited to situations in which the client has taken some specific action to interfere with the attorney’s performance. Reliance Nat'l Indem. Co. v. Jennings, 189 F.3d 689, 693–94 (8th Cir. 1999). In Delanno, Inc. v. Peace, the court held that the client failed to exercise reasonable diligence by not investigating further after she had authoritative notice that the corporate attorney’s representation to her was different from the representation made to her by a state governmental entity. 366 Ark. 542, 547–49, 237 S.W.3d 81, 86–87 (2006).

The plain language of Ark. Code Ann. § 16-22-310(a) requires a plaintiff to have direct privity of contract with the person, partnership, or corporation he or she is suing for legal malpractice. Giles v. Harrington, Miller, Neihouse & Krug, 362 Ark. 338, 347, 208 S.W.3d 197, 203 (2005); McDonald v. Pettus, 337 Ark. 265, 271–72, 988 S.W.2d 9, 12 (1999). Section 16-22-310 enunciates the parameters for litigation by clients against attorneys. Clark v. Ridgway, 323 Ark. 378, 385–86, 914 S.W.2d 745, 748–49 (1996). Ark. Code Ann. §§ 16-22-310 and 16-114-303, statutes that provide immunity from claims brought by parties not in direct privity of contract with attorneys, only provide immunity from claims based upon conduct in connection with professional services by the attorney. An attorney’s alleged negligent hiring, retention, and supervision of another attorney do not fall within the parameters of professional services. Madden v. Aldrich, 346 Ark. 405, 411–14, 58 S.W.3d 342, 347–49 (2001).

The court in Bomar v. Moser explained that a client does not have an unqualified right to rely upon a representation made by his or her attorney when the client receives information from an authoritative source that directly contradicts the representations of the attorney. 369 Ark. 123, 131–33 251 S.W.3d 234, 241–43 (2007). Instead, it is incumbent upon the client to reconcile the contradiction by some act of reasonable diligence. Id. See also, Delanno, Inc., supra. 366 Ark. at 547–49, 237 S.W.3d at 86–87.

The bracketed paragraph of this instruction includes the concept of common knowledge as it is to be applied to legal negligence cases. The bracketed paragraph has been modified to recognize the distinction between deciding the applicable standard of care and deciding whether the attorney used or applied the applicable standard of care. In some cases, the only relevant proof concerning the application or use of the appropriate standard of care will come from expert witnesses and other admissible evidence of professional standards. However, in other cases, the trial judge may determine that the jury should consider appropriate lay testimony that is relevant to the use or application of the standard of care. See George L. Blum, Annotation, Admissibility and Necessity of Expert Evidence as to Standards of Practice and Negligence in Malpractice Action Against Attorney-Conduct Related to Procedural Issues, 59 A.L.R.6th 1, § 5 (2010).